Carolina Power & Light Co v. Bowman Et A)

• Decision Date: 07 January 1949
• Docket Number: No. 669.,669.
• Citation: 229 N.C. 682,51 S.E.2d. 191
• Court: North Carolina Supreme Court
• Parties: CAROLINA POWER & LIGHT CO. v. BOWMAN et a).

51 S.E.2d. 191

229 N.C. 682

CAROLINA POWER & LIGHT CO.

v.BOWMAN et a).

No. 669.

Supreme Court of North Carolina.

Jan. 7, 1949.

STACY, C. J., and WINBORNE and SEAWELL, JJ., dissenting.

Appeal from Superior Court, Robeson County; Leo Carr, Judge.

Action by Carolina Power & Light Company against William Murphy Bowman and others to enjoin defendants from maintaining an obstruction in the form of substantial, building on plaintiff's right of way which it had acquired by condemnaton and used for construction and maintenance of its electric power lines. Judgment for defendants and plaintiff appeals.

New trial.

This case was here at Fall Term 1947, and is reported in 228 N.C. 319, 45 S.E.2d 531, The action was instituted to restrain the maintenance of obstructions on land upon and over which the plaintiff had acquired an easement by condemnation for the construction and operation of its electric power lines. It was alleged that the defendants had erected a permanent brick building, now used as a moving picture theater, on plaintiff's right of way in violation of its easement and constituting an interference inconsistent with its rights and its ability to operate, maintain, and repair its transmission lines, and creating hazards to plaintiff, defendants, and the public.

The defendants Bowman admitted the construction of the theater building as a permanent structure on the land described, but entered a general denial of plaintiff's allegations, and further denied that plaintiff had a valid casement as against defendants' fee simple title to the land, alleging specifically that at the time defendants took title to the land no easement thereon, by contract or condemnation, appeared of record in the office of the Register of Deeds of the County. The defendant Snow is lessee of the theater building and has no other interest in the controversy.

At the first trial June Term 1947 there was judgment of involuntary nonsuit, and plaintiff's appeal therefrom was heard at Fall Term 1947 of this Court. It was determined on that appeal that plaintiff's easement was valid and subsisting, and that the condemnation proceedings and judgment of record in the Superior Court, under pertinent statutes, were not required to be recorded also in the Register's office, and that plaintiff's easement described in the judgment was not lost or defeated by subsequent conveyance from the original owners under whom defendants Bowman claim. The judgment of nonsuit was set aside and the cause remanded for the determination of issues of fact raised by the pleadings.

On the trial at March Term 1948, the issue raised by the allegation in the complaint and denial in the answer was submitted to the jury as follows: "Does the erection and use of defendant's theater building constitute an interference inconsistent with plaintiff's easement, as alleged in the complaint?" Other questions referred to in the pleadings were eliminated.

It was stipulated that plaintiff's predecessor in title, the Yadkin River Power Company, had condemned fifty feet in width over the land of defendants' grantors in a proceeding instituted and prosecuted to final judgment in the Superior Court of Robeson County in 1913, and that the defendants Bowman are the owners of the land subject to such rights as plaintiff has by virtue of the easement thereon. The judgment roll in that pro-ceeding was offered in evidence. Therein the rights acquired upon payment of $500 compensation were described and defined as "right of way" across the lands of the defendants "for the purpose of building and forever maintaining, inspecting and keeping in repair its said lines for the transmission of electircity and its telephone lines, and the right of access along and upon said easement for its officers, agents and employees, and those of its successors and assigns, for the purpose of inspecting, repairing and maintaining said lines for transmitting electricity and its telephone lines, and to keep said easement and right of way and the land adjacent thereto cleared of all such trees and objects as might fall upon and across said lines. And, except for the purpose aforesaid, petitioner shall not interfere with the rights of the defendants; and the defendants shall have full power and right to use the land over which said easement and right of way is condemned for any and all purposes not inconsistent with said easement of petitioner, its successors and assigns." In the Superior Court at term time, to which the proceeding was removed, it was adjudged by consent that the final order of the Clerk be in all respects confirmed, with the following proviso: "Provided, that defendants and their heirs and assigns shall have the right and privilege to use a portion of the land condemned in this proceeding for agricultural purposes when not necessary for the use of the plaintiff."

Plaintiff offered evidence that the defendants had recently erected and now maintain on the 50-foot strip of land so condemned a brick building with concrete foundation, 35 feet wide, 95 feet long, and 20 or 25 feet high, immediately underneath plaintiff's power lines which carry 110, 000 volts of electricity. The roof of the building is within approximately 10 feet of plaintiff's power lines, and metal vents extend above the roof within 8 feet and 4 inches of the wires. Four wires for the transmission of this electric current are strung from steel towers 350 feet apart and are and were suspended over this 50-foot right of way at the time of the erection of the building. The building covers all but a small portion of the width of the right of way for its entire length, and a smaller building is also on the right of way in rear of brick building. The brick building was constructed for and is now in use as a moving picture theater with seating capacity of some 400. This evidence was uncontroverted.

Plaintiff also offered evidence from electrical experts and engineers that the height, size, and construction of this building on the right of way interfered with the inspection, maintenance and repair of plaintiff's power lines and prevented free access over and along the right of way for this purpose, particularly in case of injury to structures, and for the installing of new and larger conductors now in prospect incident to a new major steam electric power plant under construction near Lum-berton. The building would also interfere with transportation and use of equipment and material for work on wires, insulators, conductors and towers.

The defendants offered an electrical engineer who described in some detail methods which in his opinion could be used without serious difficulty in making repairs by pulling the wires to one side and away from the building; though some difficulty would be presented it would not be insuperable; that in case the Light Company should decide to relocate some of its structures and desire to use the space occupied by the building, it would be in the way; and that in the delicate work of changing insulators, or in case lightning should strike, potential hazards to the power wires, the building, and those who might be therein would be occasioned. He testified in effect if it became necessary to change conductors for larger ones the building would interfere with the operation or necessitate additional construction. There was also testimony that if the transmission line came in contact with the building it would likely burn, and that due to the presence of the building on the right of way more labor and additional equipment might be required to make repairs; that electric wires are strung over buildings in Lumberton and other cities, though usually these are low voltage wires and do not carry 110, 000 volts of electricity.

The defendants consented that the frame building referred to in the testimony as partly on the right of way be removed, having been put there by another without defendants' knowledge.

At the conclusion of the testimony the plaintiff moved the court upon the pleadings and evidence for a directed verdict in its favor upon the issue submitted, which motion was denied, and plaintiff excepted. Among other requests for instruction, the plaintiff asked the court to charge the jury as follows:

"The court charges you as a matter of law, under this contention (as to size, character and location of the building and its effect upon plaintiff's use of its easement), that the plaintiff is entitled to have the land within the boundaries of its right of way, and every part thereof, kept open and unobstructed by any structures of permanent nature, such as the building in question, so that plaintiff and its agents and employees may travel on foot and by vehicle upon and along said right of way as occasion may arise, and for all purposes which are reasonably necessary now, or which may probably become necessary at any time in the future, in the inspection, repair, maintenance, or reconstruction and operation of its transmission lines, and I charge you gentlemen that if you should find from the evidence, and by its greater weight, that the said building is of such general character and is so located and maintained by defendants upon the plaintiff's easement, that it would constitute a use of the land inconsistent with the easement, it will be your duty to answer the issue yes. I further charge you that if you believe the evidence in respect to the nature, size, and location of said building, that you should answer the issue yes." This request for instruction was denied, and plaintiff excepted.

The jury answered the issue no, and from judgment on the verdict plaintiff appealed.

Varser, McIntyre & Henry, of Lumber-ton, and A. Y. Arledge, of Raleigh, for plaintiff-appellant.

McKinnon & Seawell and McLean & Stacy, all of Lumberton, for defendants-appellees.

DEVIN, Justice.

The former appeal in this case by the plaintiff was from a judgment of nonsuit. Carolina Power & Light Co. v. Bowman, 228 N.C. 319, 45 S.E.2d 531. The question...